This past June, the Wisconsin Supreme Court affirmed a decision of the court of appeals that an employer/property owner could be held liable for damage to his neighbors property caused by the acts of the independent contractor he hired to spray herbicide.

The case is Brandenburg v. Briarwood Forestry Services, LLC, 2014 WI 37. The defendant, Leuthi, hired an independent contractor, Briarwood, to spray herbicide on his property. The spraying drifted to the plaintiffs/neighbors' property, damaging their trees. The plaintiffs sued the defendant property owner for the negligence of the independent contractor.

In Wisconsin, and elsewhere, the general rule is that one who contracts for the services of an independent contractor is not liable to others for the acts of the independent contractor.  The injured party is allowed to recover damages only from the contractor.  However, the law has long recognized an exception that a principal employer may be liable to a third party for the independent contractor's negligence, if the independent contractor was performing inherently dangerous work. The rationale for the exception is to prevent employers from evading liability by hiding behind independent contractors when the activity they were hired to do presented a foreseeable risk of harm.

Brandenburg reminds employers that they can be liable for the actions of the independent contractors they hire, and further specifies what is considered ‘inherently dangerous activity.' Most important, the majority recognized a jury must find the employer failed to exercise reasonable care in regards to the inherently dangerous activity before imposing liability.

‘Inherently Dangerous Activity': Criteria Affirmed

In making its ruling, the Wisconsin Supreme Court reaffirmed long-established criteria for deciding whether an activity is inherently dangerous. The test for whether an activity is inherently dangerous has two parts. An activity is inherently dangerous: 1) if the activity poses a naturally expected risk of harm and 2) if it is possible to reduce the risk of the activity to a reasonable level by taking precautions.

The Supreme Court found undisputed evidence established the chemicals in the herbicide spray were known to drift across property lines and capable of damaging more than 50 trees, thus posing a naturally expected risk of harm. Further, undisputed evidence showed the risk of damage could be significantly reduced with reasonable precautions.  It was not necessary that the risk be eliminated 100%. The Supreme Court held that as a matter of law, spraying herbicide is an inherently dangerous activity.

An Employer May Avoid Liability If They Can Show They Exercised Reasonable Care In Regards To The Inherently Dangerous Activity

In finding the application of herbicide spray is an inherently dangerous activity, the court split on the relevant standard to establish negligence against the employer. The majority, including Justice Crooks, joined by Justices Roggensack, Ziegler, and Gableman, held that the employer is liable only where the jury determines that he or she knew or reasonably should have known of the risks presented, but failed to exercise reasonable care to prevent the plaintiff's damages.  The case was remanded to the trial court to hear further evidence on this issue., i.e. whether Luethi knew or had reason to know of the danger inherent in spraying herbicide and specifically, “whether Luethi exercised ordinary care to prevent damage to the Brandenburgs' property.” 2014 Wis. 37 ¶ 14.

Justice Abrahamson, concurring/dissenting, joined by Justices Bradley and Prosser, would have held the employer/property owner strictly liable for any damages resulting from the contractor's negligent acts, irrespective of whether the employer committed any negligent act. Justice Abrahamson opined that once the court determines as a matter of law that the activity is “inherently dangerous,” the court has also determined that a reasonable person in the defendant's position knew or had reason to know the activity was inherently dangerous. See 2014 Wis. 37 ¶99. The analysis ends.

The majority's approach nonetheless allows a defendant to avoid liability if he or she can convince the jury the employer exercised ordinary care.

Implications

The Court's decision sets a relatively low bar for what is considered an “inherently dangerous activity.” It also clarifies the long-established exception that an employer can be held liable for the actions of its independent contractors when hired to do an “inherently dangerous activity.”

Most important, Brandenburg gives employers/property owners an opportunity to avoid liability by showing they took reasonable efforts to avoid the risk of an inherently dangerous activity. Employers/property owners should be encouraged to assess the potential risks of the activity for which they are hiring an independent contractor. In doing so, employers should document, whether through bids or work agreements, measures they take to reduce the risk of the inherently dangerous activity. This should include language that the independent contractor agrees to perform all work in compliance with relevant laws and applicable standards. In the event an employer is sued, they can turn to this documentation.

If you would like more information regarding employer liability and independent contractors, please contact us at (608) 662-1180. 

 The “inherently dangerous” standard is distinct from the “abnormally dangerous or extrahazardous” standard that applies when the plaintiff is not a third party, but rather an independent contractor's employee. In that case, in order to hold the principal employer liable for the independent contractor's negligence, the employee has to show that the independent contractor was hired to perform “abnormally dangerous or extrahazardous” work. The appellate court in Brandenburg discusses this distinction further. The opinion can be found here. See also Wagner v. Continental Casualty Co., 143 Wis. 2d 379, 421 N.W.2d 835 (1988).

This news update is designed to provide general, educational information on pertinent legal topics, and the statements therein do not constitute legal advice. This news update is not intended to create an attorney-client relationship between you and Corneille Law Group, LLC. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.